MacDonald Gets Another Chance To Prove Innocence

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The News & Observer, Raleigh, N.C.By Anne Blythe

RALEIGH, N.C. - One hundred miles separate the Fort Bragg apartment where the murders occurred and the Wilmington federal courthouse where Jeffrey MacDonald will make his latest stop on a tortuous legal path.

But the journey from the murder scene to a courtroom in North Carolina stretches a far greater distance – through time and lives and volumes of appeals and reviews.

The case of the former Green Beret captain and Princeton-educated doctor convicted of slaughtering his family has endured for four decades, generating several books, a TV miniseries, countless articles and a bulging docket that includes seven reviews by the U.S. Supreme Court.

Testimony and scenarios have been questioned multiple times. Memories have faded. Evidence has been lost.

Key figures have died and others have grown from young to gray-haired, including MacDonald, 68, alternately described as a remorseless psychopath who is right where he should be and an emotionally aching victim whose devastating loss has been compounded by a gross miscarriage of justice.

MacDonald will be back behind the defense table beginning Monday in a reunion of characters now familiar to those who have followed the legal drama's many chapters.

The crime dates to the era of Nixon, draft dodgers and The Beatles, but it is being seen in the new light of crime-scene science and technology developed since. DNA testing and other analytical tools and crime-scene protocols were not available on Feb. 17, 1970, when police found MacDonald wounded near the bludgeoned and stabbed bodies of his wife, Colette, and their daughters Kristen, 2, and Kimberly, 5.

An Army review of the case found insufficient evidence to charge MacDonald in the killings, but a crusade by Colette's stepfather, Alfred G. "Freddy" Kassab, led to an indictment and civilian trial.

Now, the focus has shifted from the crime itself to the procedural side as lawyers and skeptics of the 1979 conviction have highlighted flaws of the investigation and trial.

Those methods and procedures are the subject of a new book by Errol Morris, a documentarian whose "A Wilderness of Error: The Trials of Jeffrey MacDonald," was published this month.

"I believe he is innocent. I don't see any evidence to suggest that he is guilty," Morris told the New York Times in a Sept. 2 report on his book. "One thing we do know is that evidence was lost, some of it went uncollected, and some of it was contaminated. One of the reasons we can't prove he is innocent is that so much of the evidence is unavailable to us."

But it is that evidence, looked at with freshened hindsight, that will bring together a collection of well-known characters in the long-running narrative born from that bloody February night.

In April 2011, the 4th U.S. Circuit Court of Appeals ordered the trial court to consider DNA evidence that casts doubt on MacDonald's guilt, with other evidence submitted by MacDonald's team. The appeals court said the evidence must be considered as a whole, rather than piecemeal.

The hearing before Judge James Fox in North Carolina's federal Eastern District is to consider new claims about DNA evidence that was tested in 2006. The DNA testing shows that two tiny hairs found beneath the fingernails of MacDonald's daughters do not match anyone examined in the investigation, evidence that MacDonald contends bolsters his account of the killings.

The judge also could consider statements made by a former marshal and the mother of a drug-addled woman spotted by law-enforcement officers near the murder scene.

Though it will not be a retrial of a decades-old case, the hearing will have echoes of a trial that has created strong camps of opinion.

"This is very significant," said Kathryn MacDonald, who married MacDonald in federal prison in 2002, five years after she wrote to him about his case.

The decades have provided spin-off storylines that could further play into a case that continues to stir debate.

Morris joined others in questioning whether McGinniss pretended to believe MacDonald was innocent to gain continued cooperation for a book that ultimately concluded guilt. MacDonald sued the author, and though a trial on the matter resulted in a hung jury, the publisher's insurance company reached an out-of-court $325,000 settlement that was distributed to the inmate's mother and mother-in-law.

McGinniss, whose book is about to be reprinted and issued for the first time as an e-book, told the New York Times he is comfortable with his conduct and conclusions.

"There is no question in my mind that he did it, and that it was proved in a court of law, and that every court that has looked at that jury verdict has upheld it," McGinniss said. He added that he has been subpoenaed to appear at the hearing in Wilmington and "looks forward to going wherever I need to, to play whatever small role I can play in keeping him where he belongs."

The case has two very different narratives, one provided by MacDonald and the other by prosecutors.

MacDonald's is this: He went to sleep on the living room couch several hours after midnight. His youngest daughter, Kristen, had wet his side of the bed he shared with his wife. Instead of waking her to change the sheets, he carried his daughter back to her room and grabbed a blanket to settle down in the living room.

He awoke to shouting and screaming, his pregnant wife and older daughter, Kimberly, appealing for his help.

MacDonald told authorities he opened his eyes to find four figures standing over him: two white men, a black man in a military fatigue jacket with sergeant's stripes on the sleeve and a woman wearing a floppy hat over stringy blond hair.

He contended the woman chanted "Acid is groovy, kill the pigs," reminiscent of the drug-crazed Charles Manson murders that had happened one year before.

MacDonald claims the intruders clubbed him and stabbed him with what looked to be an ice pick. He lost consciousness.

He awoke and found his wife dead in the master bedroom, pulled a knife out of her chest, lay beside her and attempted to give her mouth-to-mouth. The word "pig" was written in blood on the bed headboard. He then found his girls, lying bloody in their bedrooms, and called for help at 3:33 a.m.

Prosecutors provided a different story:

They argued that despite MacDonald's injuries – blunt-force trauma to the left side of his forehead, a bruised right forehead, stab wounds and a collapsed lung – he had snapped and killed his family in a rage.

His wife had been stabbed with a knife 16 times in the chest and neck. An ice pick was driven into her chest 21 more times. She'd also been hit at least six times in the head with a club, and had broken arms.

Kimberly had been clubbed in the head at least six times, with one blow shattering her skull and another splintering her nose and cheek. She also was stabbed in the neck repeatedly as she was close to death.

Kristen had 33 stab wounds from a knife – in the chest, in the back and one to her neck. An ice pick had been plunged into her chest 15 times and her finger was cut to the bone, with prosecutors suggesting that showed she had tried to protect herself.

Prosecutors, though, never presented a clean motive for why a man with no signs of a violent past would snap, bludgeon his family, stage a crime scene and inflict wounds on himself. His case exposed extramarital affairs, but there was no testimony or evidence of one going on at the time of the murders.

In Monday's hearing, McDonald must show a constitutional violation and clear and compelling evidence of "his actual innocence."

He has outlived two of the people whose statements are to be the subject of the coming hearing.

In 2005, retired Deputy U.S. Marshal Jimmy Britt came forward to say that he saw prosecutor James Blackburn threaten Helena Stoeckley, often referred to as the "woman in the floppy hat," who claimed she was inside the MacDonald home when the murders occurred.

Though Stoeckley, a woman known to police who struggled with drug abuse, died in 1983, her mother came forward when she was 86, three years before her death, to talk with the MacDonald defense team. She said her daughter confided in her several times that she and several of her friends had gone to the MacDonald house on the night of the murders to intimidate the doctor because they believed he was being too hard on drug users.

The mother continued that her daughter told her that one of the men went "out of his mind" and that when she became aware that her boyfriend at the time and another man began killing the family, she fled.

Stoeckley said her daughter tried to tell the truth – that she was in the MacDonald house and her then-boyfriend, a man who committed suicide in 1982, and another man were responsible for the deaths – but the FBI and other law enforcement officials told her to keep quiet.

Helena Stoeckley did not testify about that at trial. Her mother said her daughter confided in her that she lied at the trial and was afraid to come forward with the truth because she was afraid of the prosecutor.

Though Mrs. Stoeckley, also named Helena, died in 2009, she told MacDonald's defense team that she had told her son what her daughter said. He could be called to the stand in MacDonald's latest appeal.

Others on the possible witness list include:

-Lee Tart, a retired U.S. marshal who was a close friend of Britt, the former marshal who signed a sworn statement saying he heard Blackburn coerce a witness to lie.

-Blackburn, the former prosecutor, who said this past week that he planned to be in Wilmington. He declined to comment about specifics of the case because he might be called to testify.

-Janice Glisson, an 80-year-old retired Army Criminal Investigation Command lab worker who testified at the original trial.

Also on the list are Brian Murtagh, a prosecutor at the 1979 trial, and Wade Smith, the Raleigh lawyer who defended MacDonald in 1979.

After the hearing, the judge could vacate the conviction, order a new trial or determine that the new evidence would have had little significance on the outcome of the trial and the verdict reached 34 years ago.

MacDonald, just 26 years old when his family was murdered, was a successful, good-looking man who seemed to have much going for him. The man voted by his high school class as the most "popular" and "most likely to succeed," the doctor who married his high school sweetheart, has spent more than 60 percent of his life behind bars, protesting that he has been wrongfully convicted and imprisoned for a heinous crime he insists he did not commit.

"There are many reasons why there's so much interest in this case," said Christine Mumma, executive director of the North Carolina Center on Actual Innocence, which also has taken up MacDonald's case. "If that could happen to a family like that, that's intriguing and scary. This case has a lot of unique and very fascinating facts."